The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 4 today (and 24 NFP)

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Tuesday, September 30, 2008

Ind. Decisions - Court of Appeals issues 4 today (and 24 NFP)

For publication opinions today (4):

In Joel Silverman, Commissioner of the Indiana Bureau of Motor Vehicles v. Miguel Villegas, Betty Doe, et al. , a 24-page, 2-1 opinion, Judge Robb writes:

Three illegal aliens instituted a class action against the Commissioner of the Indiana Bureau of Motor Vehicles (“BMV”) claiming they were unable to obtain State of Indiana driver’s licenses and/or identification cards because of identification requirements implemented by the BMV on July 15, 2002. In a prior appeal, this court held that the identification requirements constituted an administrative rule, which was void because it was not promulgated pursuant to the Indiana Administrative Rules and Procedures Act (“ARPA”). We therefore instructed the trial court to enter summary judgment in favor of the plaintiffs. Villegas v. Silverman, 832 N.E.2d 598, 610 (Ind. Ct. App. 2005), reh’g denied, trans. dismissed (“Villegas I”). The trial court entered judgment in the plaintiffs’ favor on their complaint and granted the plaintiffs’ motion for attorney fees and costs as prevailing parties pursuant to 42 U.S.C. § 1988 (“section 1988”), ordering the BMV to pay such attorney fees and costs in the amount of $112,468.43. The BMV appeals the trial court’s grant of this motion, raising for our review the issue of whether the plaintiffs are prevailing parties pursuant to section 1988 for the purpose of awarding fees. Concluding that the plaintiffs are prevailing parties and that their success in having the identification rule voided merits an award of attorney fees, we affirm. * * *

The plaintiffs are prevailing parties for succeeding on a state statutory claim that is pendent to a substantial federal constitutional claim that arises from a common nucleus of operative fact. Moreover, the plaintiffs’ success in having the identification requirements declared void merits an award of attorney fees. The trial court’s section 1988 attorney fee award is therefore affirmed. Affirmed.

RILEY, J., concurs.
BAKER, C.J., dissents with separate opinion. [that concludes] The majority seemingly takes the view that a claimant need only advance “some” type of constitutional claim and succeed on a non-related state claim to become entitled to attorneys’ fees under Section 1988, regardless of any failure to prove the constitutional claim or even make a showing that the federal claims were substantial. To me, such a notion contradicts the spirit of the Section 1988 provisions. Because the plaintiffs’ counsel did not achieve any recovery that was beneficial to their clients pursuant to their federal claim, I believe that the award of attorneys’ fees in this case was not warranted under Section 1988. Thus, I would reverse the judgment of the trial court.

In French-Tex Cleaners v. Cafaro Co. and Towne Management Co. , a 23-page opinion, Judge Kirsch writes:

French-Tex Cleaners, Inc. (“French-Tex”) brings this interlocutory appeal of the trial court’s grant of summary judgment: (1) in favor of Cafaro Company (“Cafaro”) on French-Tex’s breach of contract and conversion claims; and (2) in favor of Towne Management Company (“Towne”) on French-Tex’s conversion claim. Towne brings an interlocutory cross-appeal on the trial court’s grant of summary judgment in favor of French-Tex on French-Tex’s breach of contract claim. The parties raise the following restated issues: I. Whether the trial court erred in granting summary judgment in favor of French-Tex on its breach of contract claim against Towne. II. Whether the trial court erred in granting summary judgment in favor of Towne on French-Tex’s conversion claim. III. Whether the trial court erred in granting summary judgment in favor of Cafaro on French-Tex’s claims for breach of contract and conversion. We affirm in part, reverse in part, and remand.

In Bridget Pavese v. Cleaning Solutions , a 12-page opinion, Judge Vaidik writes:

After the Indiana Supreme Court in Milledge v. The Oaks, 784 N.E.2d 926 (Ind. 2003), adopted the positional risk doctrine that placed the burden of proof on employers in cases involving neutral risks, the Indiana General Assembly amended Indiana Code § 22-3-2-2(a) to place the burden of proof on employees throughout the proceedings. In this case, Bridget Pavese fell on the job and received medical treatment for a head injury. Her employer, Cleaning Solutions, refused to pay her medical bills. Pavese now appeals the decision of the full Worker’s Compensation Board affirming the decision of a hearing member, who concluded that she experienced a personal event on the job that is not covered by the Worker’s Compensation Act. Specifically, Pavese contends that the amendment to Indiana Code § 22-3-2-2(a) is unconstitutional as applied to her because it places on her the burden of proving a negative, that is, that her injury is not the result of a personal health condition. In the event we find the amendment constitutional, Pavese asserts that she has nevertheless met her burden of proof. Concluding that Pavese has not met her burden of proving that the amendment to Indiana Code § 22-3-2-2(a) is unconstitutional and that she also has not met her burden of proving that her injury arose out of her employment, we affirm.

In Franklin R. Marshall v. State of Indiana , a 17-page opinion, Judge Kirsch writes:

Following a jury trial, Franklin R. Marshall was convicted of five child molesting felonies, four as Class A felonies1 and one as a Class B felony.2 Marshall raises four issues, which we consolidate and restate as: I. Whether the trial court committed errors in the admission and exclusion of evidence during trial; II. Whether any trial court error occurred with respect to Marshall’s claim that the jury saw him before or after trial being transported in handcuffs; and III. Whether Marshall’s aggregate ninety-six year sentence is inappropriate given his character. We affirm.

NFP civil opinions today (7):

Indiana Alcohol and Tobacco Commission v. Ultimate Place, et al. (NFP) - "From the foregoing, we conclude that the ATC’s, and the local board’s, decision to deny Ultimate Place’s application for an alcoholic beverage permit renewal was not based upon substantial evidence and was arbitrary and capricious. The trial court did not improperly reweigh the evidence. The decision of the trial court is affirmed. Affirmed."

Guaranteed Muffler and Brake v. Arthur M. Rosales (NFP) - "Guaranteed Muffler and Brake (Guaranteed) appeals the small claims court’s judgment awarding Arthur M. Rosales monetary damages relating to repair work performed on Rosales’s car by Guaranteed. The following issue is dispositive of the appeal: Did the trial court err in concluding that Guaranteed is liable to Rosales because it failed to warn him about the defective fuel rail in his engine and the immediate dangers inherent therein? We affirm. * * *

"In balancing the three factors set out above, we conclude that Rosales’s direct customer-client relationship with Guaranteed, the foreseeability that his car could catch fire if the fuel rail malfunctioned, and the foregoing public policy considerations all mitigate in favor of the imposition on Guaranteed of a duty to warn, a duty which the trial court found that Guaranteed failed to discharge. Accordingly, Guaranteed has failed to establish a prima facie case that the trial court’s judgment was clearly erroneous."

Kirby T. Hobbs v. Tiana L. Hobbs (NFP) - "Kirby T. Hobbs (“Husband”) appeals the trial court’s denial of his motion to correct error filed subsequent to its dissolution decree awarding Tiana L. Hobbs (“Wife”) one half of the marital estate. Wife asserts that she is entitled to reasonable appellate attorney’s fees. We affirm the trial court’s disposition of the property and remand for a determination of appellate attorney’s fees. * * *

"The trial court retains jurisdiction to award appellate attorney’s fees even after the perfection of this appeal. Thompson, 811 N.E.2d at 929. We therefore remand this case to the trial court to determine whether appellate attorney’s fees should be awarded and in what amount."

J. Michael Ray v. Laidlaw Medical Transportation, Inc., et al (NFP) - "J. Michael Ray (“Ray”) appeals from the Allen Superior Court’s grant of summary judgment in favor of Laidlaw Medical Transportation, Inc. d/b/a American Medical Response of Fort Wayne (“AMR”) in Ray’s “whistleblower” suit against AMR. Upon appeal, Ray claims that the trial court erred in concluding that Ray was required to have reported a violation of federal law or regulation in writing before he was protected under the whistleblower statute, Indiana Code section 22-5-3-3 (2005). We affirm. * * *

"Although Ray makes several arguments regarding public policy reasons for protecting employees from retaliation for verbal reports, such arguments are best directed toward our General Assembly, which apparently chose not to protect employees who did not file written reports. As AMR notes, several states have whistleblower statutes which protect employees for making either written or verbal reports of violations. * * * Our statute could have been written to similarly provide protection for employees who report violations of the law either verbally or in writing, but it does not.

"Because Ray did not make a written report of the alleged violations prior to his discharge, the whistleblower statute affords him no protection. The trial court therefore did not err in granting summary judgment in favor of AMR."

The Matter of Term. of Parent-Child Rel. of E.M. v. Jackson Co. Dept. of Child Svcs. (NFP) - "Concluding that the trial court’s judgment terminating Father’s parental rights is supported by clear and convincing evidence, we affirm."

Term. of Parent-Child Rel. of S.B., and Jennifer B. v. State of Indiana, Office of Family and Children (NFP) - "J.B. (“Mother”) appeals the trial court’s termination of the parent-child relationship with her son, S.B., upon petition of the Allen County Department of Child Services (“DCS”). The sole issue for our review is whether there is sufficient evidence to support the termination. We affirm."

In the Matter of T.S. and B.S. (NFP) - "Appellant-Petitioner Warrick County Department of Child Services (“WCDCS”)
appeals the juvenile court’s determination that the evidence was insufficient to prove that
T.S. and B.S. were Children in Need of Services (“CHINS”) with respect to their mother,
Brenda Simmons. We affirm."

NFP criminal opinions today (17):

Andre Powell v. State of Indiana (NFP)

Joshua Engler v. State of Indiana (NFP)

John W. McMaster v. State of Indiana (NFP)

Steve Delp v. State of Indiana (NFP)

Krystal Joanna Raney v. State of Indiana (NFP)

Joshua Bennett v. State of Indiana (NFP)

Shaun Long v. State of Indiana (NFP)

Christine D. Edwards v. State of Indiana (NFP)

Hassan Bledsoe v. State of Indiana (NFP)

Jermaine Davis v. State of Indiana (NFP)

D.R., Jr. v. State of Indiana (NFP)